Job Discrimination Cases have Lawmakers Scratching their Heads

Washington, DCSupreme Court justices are now scratching their heads due to two new job discrimination cases that have fallen into their laps. They are wondering exactly how well federal law protects employees from retaliation by their employers when they make claims of discrimination. This is despite a ruling three years prior by the justices that has now left the law wide open for interpretation.

In 2005, justice Sandra Day O'Connor cast the decisive vote on how the law would cover retaliation, which has a rather generous interpretation. Now, many of the justices seem to be readying themselves for a retreat from that interpretation of the law because each one of them has a broad explanation of what it means and are now considering what kind of protection is offered by a law that is so broad.

These new considerations stem from a case heard by the justices on February 20th regarding the firing of a black Cracker Barrel restaurant employee after he had complained about alleged derogatory remarks by his manager. A majority of the justices had a very broad interpretation of the anti-discrimination laws, which was argued in this case. It is said that the interpretations were all over the place and interpretations were compared to what they call "the bad old days" in terms of worker's rights. Some allege that the new appointees from 2005 and 2006, along with Anthony Kennedy and Clarence Thomas could actually curb the options of workers when they are in a retaliation situation.

In cases in which black workers claim retaliation, they frequently turn to the Reconstruction-era law that supplements those provisions in the 1964 Civil Rights Act that is employment-related. However, the time limits are strict when filing and the damages allowed are restricted. The law was actually written in 1866 to allow blacks and former slaves the same rights as whites when making contracts, but this aspect of the law was also very broad and could be interpreted in many ways.

A second case that was seen before the justices last week, involved the question of federal employees being able to sue for retaliation when age bias is involved since private-sector workers can. The case was brought on by Myrna Gomez-Perez, a U.S. Postal Service worker who claimed she was discriminated against. However, Justice Ruth Bader Ginsburg stated that it is common for a discriminated against individual to claim that they did not move ahead in their job because of discrimination. Furthermore, it is common for the discriminated against individual to claim that they were retaliated against when they complained.

However, it was in 2005 that the court made a ruling that a certain federal law prohibited gender discrimination in education, which covers those complaining of discrimination. The case dealt with a women's basketball coach from Birmingham, Alabama who claimed discrimination. The decisive vote was cast by O'Connor and she wrote in an opinion that when a person is retaliated against for complaining of bias, that in itself is a form of bias.

It was this opinion on the law that the workers in these two recent cases have relied on, but the justices have such a broad definition of it that there may not be a lot to reach out with. However, what one attorney interprets the opinion of O'Connor as saying is that retaliation is simply another kind of discrimination, which is what the court ruled upon in 2005. However, it does come down to the justices that are left prior to the appointees of 2005 and 2006 who may see the opinion written by O'Connor as it was meant to be seen.

By Ginger Gillenwater